Standing Committee D

[Mr. Eric Illsley in the Chair]

Courts Bill [Lords]

Clause 2 - Court officers, staff and services

Amendment proposed [this day]: No. 110, in 
clause 2, page 2, line 29, leave out 'and'.—[Mr. Heath.]

Eric Illsley: I remind the Committee that with this we are taking amendment No. 111, in
clause 2, page 2, line 30, at end insert 
 'and 
 (e) persons who appear to him to be representative of the lay justices.'.

Christopher Leslie: I welcome you to the Chair, Mr. Illsley. I said to Mr. O'Brien at the beginning of our proceedings this morning that it was nice to have a fair-minded and even-tempered Yorkshireman in the Chair. The same comments apply twice over.
 Under the amendments tabled by the hon. Member for Somerton and Frome (Mr. Heath), the Lord Chancellor would consult persons who seem to him to be representative of the lay justices, as well as the heads of division already listed under subsection (7), before making an order to contract out under subsection (6). We consider the amendments to be unnecessary as the heads of division will be the heads of the judicial family to which the magistrates already belong. The purpose of consulting the heads of division is to ensure that no judicial function has unwittingly been prepared for contracting out and, thus, transgresses the safeguard under subsection (5). In that respect, I expect the heads of division to have regard to all of the interests of the judiciary, including the lay magistracy, when undertaking such a role. 
 The four senior judges are consulted to ensure that the contracting out does not, in principle, involve a judicial function prohibited by the prevention under subsection (5). They are the right people to consult, not the local board or the local magistracy. If we were to have local consultation, it would be unclear what is meant by ''representatives of the lay justices'' under the amendment. The hon. Member for Wycombe (Mr. Goodman) highlighted that fact in his intervention. We presume that it means representatives of the Magistrates Association, but the phrase raises questions about how such a system would work, who would be the representatives, how many should there be and so on. The lack of clarify is also the reason why I am not keen to accept the amendment. 
 In response to my hon. Friend the Member for Wirral, West (Stephen Hesford) who referred to local business plans and local proposals for specific contracting out, courts boards will be involved in the 
 business planning process. Indeed, the protection under clause 21 concerning the duty to consult lay justices on matters affecting them will also kick in at that point. There is ample protection at local level. Setting out the difference between why we have wider, in principle, consultation about ensuring that judicial functions do not come under the contracting-out capability helps to clarify why we have framed the provisions in such a way. I hope that the hon. Member for Somerton and Frome will see fit to withdraw the amendment.

David Heath: I welcome you to the Chair, Mr. Illsley. I am grateful to the Minister for his response. Were the consultation under subsection (7) purely on the basis of ensuring that the contracts did not transgress subsection (5)—that was what the Minister said—and to make sure that no judicial function is unwittingly put into the contract area, that would have been a proper response. However, the actual words under subsection (7) are
''what effect (if any) the order might have on the proper and efficient administration of justice'',
 which go much wider than the narrow criterion whether a judicial function has been put into the contracted-out area. I suggest that the Minister reconsiders his definitions. 
 I was genuinely surprised by what the Minister had to say about the wording of my amendment. I know for a fact that such formulations have been tabled by Ministers of this Government to a great number of Bills to express a provision that would allow for representation from associations, such as the Magistrates Association, but without listing specific organisations, as the provision would become redundant if the associations changed. Perhaps the Minister has been given unwise advice if he thinks that my amendment is in an inappropriate or vague formulation. It has been used before. The hon. Member for Clwyd, West (Gareth Thomas) will recall the many happy hours that we spent on the Countryside and Rights of Way Bill Committee, when a similar formulation appeared many times to provide for statutory consultees who appeared to the Secretary of State to be representative of this, that or the other. 
 I hear what the Minister says, but I still think that before contracting out essential support services and administrative functions it is wise to have the views of magistrates directly, rather than simply the advice of a senior judge who is not a magistrate—he might be capable of giving a professional opinion, but not a practical one. In practice, the views of magistrates will probably be heard, but I regret that a provision for that will not exist in statute. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 2 ordered to stand part of the Bill.

Clause 3 - Provision of accommodation

Christopher Leslie: I beg to move amendment No. 18, in
clause 3, page 2, line 40, leave out 'shall' and insert 'may'.
 This amendment has been tabled to dispel the uncertainty created by an Opposition amendment that was successful in the other place. We hope that it will remove problems about interpretation. 
 During Committee stage in the other place on 28 January, Baroness Anelay tabled a successful amendment to clause 3. The aim of the amendment was to make it clear that the Lord Chancellor should be under a duty to provide, equip, maintain and manage such courthouses, offices and other accommodation as appear to him appropriate. The amendment therefore changed the wording from ''may provide'' to ''shall provide''. Baroness Anelay was concerned that the Lord Chancellor should not have discretion to choose to make no provision. I think that that is a fair summary of the rationale behind her amendment. 
 I fully understand the noble Lady's concerns about interpretation and not leaving unnecessary lacunas in the Bill. Nevertheless, we want to reverse her amendment at this stage, as we feel that the Bill makes it clear that the Lord Chancellor is already under the necessary duty, and I shall explain why. Primarily, clause 1(1) states that the Lord Chancellor has to provide an efficient and effective court system; that is his general duty. We are worried that the wording of the Opposition amendment could create uncertainty about the relationship between clause 3(1) and clause 3(2). If the Lord Chancellor, by virtue of clause 3(1), were under a duty to provide, equip, maintain and manage such courthouses himself, how could any contracting out take place under the subsequent subsection? The amendment would produce dubious wording in the Bill, so it needs clarifying. 
 The uncertainty is greater still, given that there is at present a mismatch between the words of clause 2, which still states ''may appoint'', and clause 3, which now states ''shall provide''. They were formerly constructed in a similar way. We feel that, in addition to those reasons, some potential problems of interpretation would remain. That particular phraseology needs to be altered and we should leave out ''shall'' and insert the word ''may''. I hope that the Committee can see the benefits of the amendment.

Nick Hawkins: I add my welcome to your chairmanship of the proceedings this afternoon, Mr. Illsley.
 I am slightly disappointed that the Government have not accepted one of the mini triumphs of my noble Friend Baroness Anelay of St. Johns in another place. Having considered the matter, I do not propose to resist amendment No. 18 this afternoon. The Minister sent me a helpful letter and the Under-Secretary of State, Lord Filkin, sent a not dissimilar one to my noble Friend the Baroness Anelay, explaining the basis of the Government's thinking. 
 The Minister has explained why Baroness Anelay put forward such a proposal and she was able to persuade sufficient noble Lords and Ladies to inflict defeat on the Government. However, it is useful to 
 have had it stated on the record this afternoon that the firm duty—which was what our amendment was seeking to achieve—is acknowledged by the Minister. 
 When I read Lord Filkin's letter to my noble friend Baroness Anelay, it seemed that what Ministers were being told was coming from parliamentary counsel. If the word had been changed and allowed to remain, parliamentary counsel was worried that there might be some confusion. As the hon. Member for Somerton and Frome will be aware, we had some of those concerns expressed by parliamentary counsel on the Crime (International Co-operation) Bill that we finished in Committee last week. I said on that occasion that sometimes parliamentary drafting as an arcane skill is rather different from the way in which Acts are read by ordinary people. 
 Nevertheless, we do not want to have any confusion. While we preferred our wording of the amendment that was passed in another place, we do not want to undermine the basis of what the Minister has said, which acknowledges that there is a clear duty on the part of the Lord Chancellor. Given that the hon. Gentleman said that on the record, it will be recorded in Hansard, so it lays to rest our worries about clause 3 as originally drafted. 
 In the light of the Minister's helpful reassurances both in his letters and in what he has said this afternoon, I shall not pursue the matter further or press it to a Division. We accept that on this occasion—although not on many others—the Government can reverse what was done in another place.

David Heath: I accept entirely the Minister's argument. The clause will deal with a power rather than a duty. The power derives from the duty, not the other way round. There is potential for confusion in the present wording.
 Given that there is no explicit duty to provide premises in the general duty, does that have any implications for the powers of compulsory purchase under the Town and Country Planning Act 1990, or will the general duties suffice for that purpose?

Christopher Leslie: I have to assume that there is no adverse effect on our powers as set out. Particular descriptions of the nature of compulsory acquisitions of powers are set out under clause 3. We are relatively content with them. However, I will talk to officials at some point and if there is any opinion other than that which I have just expressed, I will drop the hon. Gentleman a note to correct myself, but I do not anticipate any difficulties. I am glad that hon. Members can see that we might get into a pickle should the words remain in the Bill and that the amendment is necessary to preserve the spirit of good working order under the new arrangements.

Angela Watkinson: As a layman surrounded by lawyers, I hesitate to challenge the wording of legal documents, but looking at the clause with layman's eyes—[Interruption.] I am not alone, I am glad to hear. At line 41, the phrase ''appear to him appropriate'' seems so open to interpretation that I
 wonder if it would matter whether the word ''shall'' were changed to ''may'' or not. It could be overridden by an interpretation of ''appear to him appropriate''. For example, if the Lord Chancellor thought it appropriate to close a courthouse, the wording would hardly matter. That is a layman's question.

Christopher Leslie: That is a reasonable question for the hon. Lady to ask. Our primary concern is that, if the Lord Chancellor must provide, equip, maintain and manage courthouses himself, it raises a doubt whether the contracting out by a third party would be possible. If we were to rely only on the phrase ''appear to him appropriate'', there would still be confusion. To avoid that, I consider that it is best to change that word.
 Amendment agreed to. 
 Clause 3, as amended, ordered to stand part of the Bill.

Clause 4 - Establishment of courts boards

Christopher Leslie: I beg to move amendment No. 19, in
clause 4, page 3, line 17, leave out 'Subject to subsection (7),'.

Eric Illsley: With this it will be convenient to discuss the following:
 Amendment No. 9, in 
clause 4, page 3, line 21, at end insert 
 'if a police authority area changes, but may not change the coterminosity of a court board area with a police authority area.'.
 Government amendment No. 20, in 
clause 4, page 3, line 29, leave out from 'Chancellor' to second 'the' in line 34 and insert 
 'must have regard to the desirability of specifying areas which are the same as— 
 (a) the police areas listed in Schedule 1 to the Police Act 1996 (c.16) (division of England and Wales, except London, into police areas), and 
 (b) the area consisting of '.
 And amendment (a) to the proposed amendment, 
after ''the same as'' insert 
 ', or fall entirely within,'.

Christopher Leslie: I shall speak to amendments Nos. 19 and 20 first. Others will speak to their amendments, and I want to hear the debate before I respond to them. I think that would be the most appropriate way to proceed.
 Amendments Nos. 19 and 20 make drafting changes to an amendment made on Third Reading in another place. That amendment required the Lord Chancellor, when specifying the courts boards areas, to have regard to the desirability and coterminosity with the 42 criminal justice areas. The areas are based on the current police authority areas. There was a great deal of debate about that point and there may well be in Committee. We agree that the criminal justice areas are one of the factors that should be taken into account when deciding how the courts boards should be organised. 
 However, there are other factors, such as an effective fit with other agencies in the civil and family jurisdictions, the need and the nature of local 
 communities to be considered in the shape of those courts boards and the volume of work load in each area, the distribution of courthouses and even the shape of Government offices and region boundaries. If those factors are changed, there must be scope to alter the courts boards areas accordingly in consultation with the boards affected. The amendment in another place affords sufficient flexibility to take those factors into account. We therefore propose only minor drafting changes to that amendment to make sure that the degree of flexibility is retained, along the lines of the proceedings in another place.

Nick Hawkins: We are delighted that the Government accepted that what was put forward by my noble Friend Baroness Anelay of St Johns and supported by the Liberal Democrats and others was an improvement to the Bill. It was one of the most important debates in another place. It is a good example of how the Committees in another place and here work to improve what the Government initially put forward.
 Amendment No. 9 is intended to reinforce my noble Friend's victory in another place by adding some extra words to subsection (4), so that if a police authority area were to change the Lord Chancellor could make an order altering an area, but could not change the coterminosity of a court board area with a police authority area. I hope that even if the Minister cannot accept amendment No. 9 today, he understands the spirit of it. We are simply seeking to back up with an extra safeguard the change made in another place, which the Government have now accepted. We may want to return to that matter on Report, if the Government cannot accept our amendment today. 
 I am entirely sympathetic to Liberal Democrat amendment (a) to Government amendment No. 20. Indeed, if the amendments had not been starred, I might have wanted to add my name and the names of my hon. Friends to that of the hon. Member for Somerton and Frome, who tabled it. That amendment would reinforce the principle on which my noble Friends in another place, and those of the hon. Gentleman, were working. I genuinely congratulate the Government on their wisdom in accepting the underlying philosophy of our putting forward coterminosity between police areas and those of the new courts boards. I do not have a problem with the Government doing a little bit of tidying and redrafting of what we achieved in another place, but it would be even better if they accepted both Liberal Democrat amendment (a) and our amendment No. 9. I shall listen with interest to the Minister's response to those two amendments. 
 We are grateful to the Government for accepting their defeat with good grace, and for accepting the principle behind what we put forward in another place.

David Heath: This is an important matter in terms of the courts boards proposed by the Government. Most commentators outside this place feel that there is a need to ensure a sense of locality in the courts boards, so that they are not so large as to be divorced from the proper concerns and interests of the people they purport to represent. There is clearly a strong argument for coterminosity with the other functions
 of the justice system. That argument has been used in recent years to bring the present magistrates courts committee structure into line with the police authority areas, which were established under the Police Act 1996.
 I can understand that argument. Indeed, I recall that the hon. Member for Stone (Mr. Cash), speaking on Second Reading, questioned 
''why 42 was the chosen number.''
 Somebody sotto voce said, ''Because it is the answer to the world, the universe and everything.'' The recorded sedentary intervention in the Official Report is mine: 
''It is the number of police authorities,''—[Official Report, 9 June 2003; Vol. 406, c. 461.]
 which is rather more mundane and boring. But it is true. It is important that there should be no fewer than 42 police authority areas under the clause in terms of the courts boards. I can envisage a strong argument for there being more, provided that those do not cross the borders of the police authority areas. That is the purpose of amendment (a) to Government amendment No. 20. 
 I mentioned in the debate this morning that some police authority areas are large. The largest is in the Metropolis—the Metropolitan police area—which is treated as being connected in this instance with the City of London police. Of course, it is connected geographically, but not in constabulary structure. That area is equivalent to 15 normal sized constabulary areas. I daresay, although I am no expert on London, that Committee members would feel that the structures of their constituencies are very different from each other. I have no doubt that the hon. Member for Upminster (Angela Watkinson) and the hon. Member for Lewisham, East (Ms Prentice) feel that the areas that they represent not only have different problems with policing and maintenance of law and order, but are different from, say, Soho, the east end or Harrow. Those areas are vastly different in terms of community interests and structures. Similarly, there are hugely disparate areas even in the police authority areas outside the metropolis, such as the Greater Manchester police area, the West Midlands police area and the Thames Valley police area. St. Pauls in Bristol, in the Avon and Somerset constabulary area, is very different from somewhere up on the Quantocks. There is therefore an argument for courts boards areas that more relevantly follow the community boundaries that they represent. For the sake of convenience and ''operational efficiency'' many police authority areas have coupled together shire counties, metropolitan districts, and so on, into rather ungainly apparatus. 
 There is an argument that we have espoused on many occasions for reducing the unit of accountability in relation to policy on policing, sentencing and prosecution, courts, the probation service and all the accessory functions of state, to something that people can relate to. For the police, that will very often be the basic command unit. I am concerned that the presumption of coterminousity with police authority 
 areas that is in the scope of the Bill works against that principle, if it were to be espoused in the future. For London, I should like to see areas, perhaps the size of a borough or something similar, where people can really have a say in the way that courts are administered, police functions are carried out, and local prosecutions are mounted, so that they connect to the citizen in a way which I suspect people would find it difficult to relate to now. 
 My argument in the amendment is not that we should invent small areas just for the purpose of inventing small areas—that would be nonsense.

Andrew Miller: Can the hon. Gentleman help us, as I am not quite following his argument? Is he saying that we should go down to a unit that is small enough for there to be a commonality in terms of the policing problems? Even in the borough of Ellesmere Port and Neston, which is approximately seven eighths of my constituency there is a huge polarisation between difficult estates, where there is huge disadvantage, and some of the richest parts of Cheshire, where even the good folk of Surrey, Heath would struggle to afford the houses.

David Heath: I do not disagree one bit with what the hon. Gentleman is saying. One obviously cannot get to the stage at which every street has its own police force—that is nonsense. I think that his constituency falls in the area of the Cheshire constabulary, and I hope that he accepts that it is reasonably small and reasonably homogenous. If the hon. Gentleman were a few miles up the road, he would come into the Merseyside police area, where some of the problems may be more similar to those that some of his constituents face daily. However, he would find that those problems would be very different from some of the problems of the outlying areas of the Merseyside police. I am not trying to prescribe lots of lines on maps, because that is quite impossible. I am content with the distance that the Government have already come in saying that when the courts boards are established they will be on the basis of the police authority areas.
 I use my area simply as an illustration. Even though Somerset has areas of deprivation and of empty landscape, such as Exmoor, each part is more like other parts of Somerset than it is like the centre of Bristol. Similarly, the centre of Bristol is more like the urban areas of what used to be Avon than any part of Somerset. Although I do not put it forward as being the answer, I could see a case for having an area covering Somerset and an area covering the county formerly known as Avon. 
 There is an argument in London for a courts board area to be smaller than the area of the metropolis. That will be a matter for debate and for the Government to take a view on at some later stage. I certainly do not want courts boards to cross boundaries. That would be unhelpful; inherent in the Government's proposals is the view they should not cross boundaries. Where possible, the courts board area should follow the boundary of a police authority area, a probation service area or whatever. There will 
 be a case, which some of us will argue strenuously, for having courts board areas that are smaller constituent parts of a large police authority area. I am trying to allow for that in my amendment. It is an argument that I commend to the Minister.

Christopher Leslie: Under amendment (a), the Lord Chancellor would have to have regard to the desirability of specifying areas for courts boards that are either the same as or fall entirely within the criminal justice areas. He would therefore have to consider whether there should be several courts board areas within a single criminal justice area.
 Earlier this year, the former Lord Chancellor's Department held a series of discussion groups up and down the country to discuss the area structure of the new organisation. I think that I sent a copy of the report of those discussion groups to hon. Members last week. The stakeholders, who included magistrates, judges and representatives of those who use the courts, concluded that the criminal justice service areas were roughly at the right level at present, although particular consideration needed to be given to London. Clearly, we must take those views into account. No firm or final decisions have been made. 
 Our problem with amendment (a) is that we feel that clause 4 already affords sufficient flexibility to get the area structures right. As well as considering having 42 areas, we will consider the needs of local communities. It is difficult to see why we should consider only whether courts board areas would fit within a criminal justice area. Why should we not also consider whether police areas should be combined to form a courts board area? Lord Thomas of Gresford proposed that for Wales and Chester. I presume that that mirrored a proposal on the court circuit, with which hon. Members may be familiar. That would be prevented if there were the level of restriction suggested in the amendment. 
 The discussion groups were helpful. We will look with interest at the views relating to London. The amendment is not appropriate. We should not have that telescopic, microcosmic approach to the criminal justice service areas. We should be able to take a sensible and rational approach, depending on the area and reacting to some of the consultation that will have taken place.

David Heath: I am perfectly happy with the Minister's approach, but how can it be equally sensible and rational to have an area the size of Gwent or Dyfed-Powys and an area the size of the Metropolitan police area or the City of London?

Christopher Leslie: It may have escaped the Committee, but I did not design the layout of the United Kingdom, and cannot be held responsible for the nature of communities throughout the country. Some areas require a certain level of focus; perhaps urban areas need a different approach from more rural parts of the country. As parliamentarians, we have a duty to reflect that fact.
 Amendment No. 9 is interesting. I have already spoken about some of the changes that we have accepted to clause 4. The hon. Member for Surrey Heath (Mr. Hawkins) is pushing it a little with the 
 amendment. I was interested that he said he supported both his amendment and that tabled by the Liberal Democrats. It would be contradictory to insist that courts boards must fit the police board areas but state at the same time that it might be possible to divide them up, as suggested under amendment (a). On reflection, he might not wish to support amendment (a) if he is standing by amendment No. 9. 
 Amendment No. 9 is too restrictive. It would mean that courts board areas could be altered only in the event of a police authority area changing, and only in a way that preserved co-terminosity with the police authority area. The criminal justice areas will be the building blocks of the courts board areas, and I assure the Committee that thought will be given to their formation. 
 The amendment would tie the courts boards structure to any future changes to the police areas too rigidly. Under the amendment, only the needs of police authority business would be taken into account, not the business of the courts. It would not allow us to take into account the needs and nature of local communities, as we have in relation to the civil and family business of the court. Why should civil and family court activity fit around police authority business? 
 While criminal court activities will obviously be a priority for the courts boards, they will look at other issues. The amendment would prevent the merger of two courts board areas, or the creation of two smaller areas, even if such changes were supported by both the boards, unless similar changes were made to the police authority area. It would prevent the alteration of the courts boards' names, unless the police authority area were changed. 
 Clause 4 ensures that the Lord Chancellor must consult any affected courts boards before making an order to alter their areas. That will ensure proper consultation and parliamentary scrutiny of any changes to the areas. I invite hon. Members not to press amendment No. 9 and amendment (a) to a Division. 
 Amendment agreed to. 
 Amendment made: No. 20, in 
clause 4, page 3, line 29, leave out from 'Chancellor' to second 'the' in line 34 and insert 
 'must have regard to the desirability of specifying areas which are the same as— 
 (a) the police areas listed in Schedule 1 to the Police Act 1996 (c.16) (division of England and Wales, except London, into police areas), and 
 (b) the area consisting of '.—[Mr. Leslie.]
 Clause 4, as amended, ordered to stand part of the Bill.

Schedule 1 - Constitution and procedure of courts boards

Christopher Leslie: I beg to move amendment No. 24, in
schedule 1, page 60, line 9, leave out 'who are assigned' and insert 
 ', each of whom is assigned'.
 This amendment makes drafting changes to an amendment made on Report in another place. The effect of the amendment tabled by Lord Phillips of Sudbury was to increase the minimum number of magistrates on each courts board from one to two. I shall explain why we resisted that in the Lords. In short, we wanted the Bill to set out a framework, so that that the constitution of courts boards could vary between local areas. The regional discussion groups, to which I referred earlier, have unanimously agreed that one size does not fit all. 
 We have listened to magistrates' concerns that a minimum of one magistrate would not be sufficient, and we shall not try to defeat an amendment that increases the minimum number of magistrates to two. However, we want to amend the amendment that was accepted in another place. It would require all magistrates appointed to a courts board to be assigned to the same local justice area. Courts boards are likely to cover areas that include more than one local justice area. Amendment No. 24 therefore clarifies that each magistrate member should be assigned to one of the local justice areas that are in whole or part covered by the relevant courts board area, hence the better turn of phrase, 
''each of whom is assigned''.
 I hope that that necessary drafting change does not in any way change the spirit of what we accepted in another place.

Nick Hawkins: We are very pleased that the defeat inflicted on the Government by the combined forces of the Liberal Democrats and the Conservatives in another place has been accepted. The Minister referred to the amendment tabled by Lord Phillips of Sudbury, which was supported by my noble Friend Baroness Anelay of St. Johns. Lord Goodhart neatly encapsulated the reason why we felt it vital to have two magistrates—two lay justices. He pointed out what could happen if a single magistrate were the appointee under the original proposals:
''If there were only one magistrate on the board, he might be ill or have some unavoidable other commitment. There could therefore be a meeting of the courts board at which no magistrate would be present. That would be absolutely wrong.''—[Official Report, House of Lords, 8 May 2003; Vol. 647, c. 1198.]
 The belief of Lord Phillips and my noble Friend Baroness Anelay was that it was essential to have at least two lay magistrates—there could be more. 
 We have no difficulty with the Government's further clarification in their amendment, and I am delighted that Ministers have written to my noble Friend Baroness Anelay and I; no doubt they have written to others, too. We accept the principle of the Government amendment. Lord Filkin wrote in a letter to my noble Friend on 19 June that the Government simply want to tidy up the drafting. The Government amendment achieves that, and we welcome the fact that, as a result of the work by those in another place, we have improved the Bill. That is a good example of how this House and another place work together.

David Heath: I thank the Minister for accepting the amendment, and I agree with his redrafting of it.
 Amendment agreed to. 
 Question proposed, That this schedule, as amended, be the First schedule to the Bill.

David Heath: I shall be brief. I should like to draw the Minister's attention to the formulation that is used in paragraph 2(c) and (d). If I remember his words correctly, he said that that was terribly vague and the Lord Chancellor's having to nominate persons who appeared to him to be representative of a particular area could not possibly work in practice. I cannot remember all the arguments that he adduced in talking down my amendment earlier. I am sure that he has those somewhere in his notes.
 Question put and agreed to. 
 Schedule 1, as amended, agreed to.

Clause 5 - Functions of courts boards

David Heath: I beg to move amendment No. 115, in
clause 5, page 4, line 3, after 'concerned,', insert— 
 '( ) in particular, to scrutinise, review and make recommendations about the way in which the Lord Chancellor is discharging his duty under section 21 in relation to the courts with which the board is concerned,'.

Eric Illsley: With this it will be convenient to discuss the following:
 Amendment No. 112, in 
clause 5, page 4, line 3, leave out 'and'.
 Amendment No. 113, in 
clause 5, page 4, line 5, at end insert 
 'and 
 (c) to perform any other function which the Lord Chancellor may prescribe by statutory instrument laid before, and approved by a resolution of, each House of Parliament.'.
 Amendment No. 114, in 
clause 5, page 4, line 20, at end insert— 
 '( ) The Lord Chancellor must prepare and issue to the boards guidance about how they should carry out any function prescribed by order under subsection (1)(c).'.

David Heath: The amendment would beef up the functions of the courts boards just a little bit. There has rightly been a considerable amount of discussion, both in another place and outside, about what exactly would be the functions of the courts boards and to what degree they would have any management functions or whether they are merely sounding boards with little consequence in affecting the Lord Chancellor's decisions. The amendment would seek to make it an explicit function of the courts boards to consider how the Lord Chancellor exercises his functions under clause 21.
 Clause 21—''Duty to consult lay justices on matters affecting them etc.''—says: 
''The Lord Chancellor must take all reasonable and practicable steps . . . for ensuring that lay justices acting in a local justice area are kept informed of matters affecting them in the performance of their duties, and . . . for ascertaining their views on such matters.''
 That is a kind of lock—a lock on the Lord Chancellor—to ensure that the courts boards have a handle on whether the systems, which the Minister is 
 putting in place under the Bill, will have the desired effect. That is a sensible proposal. If the courts boards had the duty of oversight, they could take soundings from the local justice areas in their purview and talk to local magistrates and people who use the courts. If it seemed as though it was all going pear-shaped or that the Government were not behaving as the Minister or hon. Members hoped, there would be, in executing their duties under the Bill, an explicit mechanism for the courts boards to make recommendations to the Lord Chancellor. Incidentally, that would also be for the benefit of Members of Parliament and others who may be able to apply pressure on the Lord Chancellor regarding how he exercised such duties. Amendment No. 115 is a fail-safe mechanism that would lock together the various bits of the Bill and give the courts boards an effective function. 
 Three other amendments in the group hang together. No. 112 is simply a drafting amendment. No. 113, however, is the operative one, which would allow the Lord Chancellor, through a properly debated order in the House, to extend the functions of the courts boards. Those bodies are too valuable for them not to be used. Debates in another place have established more precision about what the courts boards would do, but the Bill is still light on the functions that they may perform. I want to provide a clear mechanism through which the Lord Chancellor could consult and listen to people once the boards are operating and extend the functions to include management functions, making that explicit by order. Although the courts boards are not executive bodies, they should have a managerial role in the operation of the local courts. If that is to happen, the Lord Chancellor must give guidance, which is the purpose of amendment No. 114.

Stephen Hesford: Does the hon. Gentleman agree that the amendment would be too prescriptive?

David Heath: No, I do not. The bodies can perform only the functions that are ascribed to them by law. I do not want specifically to set out every dot and comma of what the courts boards should do, but they have a vague function under the Bill. Most of the magistrates who have taken an interest in the measure feel that the courts boards would be better bodies were they to have better prescribed functions and duties within the system. I am trying to make provision for that.
 The hon. Gentleman is worried that the Lord Chancellor might use the powers to over-prescribe, but that is always a possibility when a power is given to a Secretary of State under secondary legislation. We have the safeguard, however, of proper parliamentary scrutiny, rather than perfunctory scrutiny. I must assume, therefore, that the Secretary of State, in exercising those functions, and Parliament, in scrutinising them, will make a proper job of it. The risk is that they would not. I accept the hon. Gentleman's point that we cannot legislate for the over-prescriptive qualities of future Secretaries of State or the under-performance of future Parliaments, but that is inherent in our system.

Stephen Hesford: The hon. Gentleman and I have sat in Committee on many occasions when the measures that he proposed were criticised by Opposition Members for leaving powers open for prescription and arguing for descriptions of certain functions under the Bill. Why is he not arguing for that now? What does he have in mind for the functions?

David Heath: It is a fair criticism. We have often said that, when possible, matters should be covered by primary legislation. I still hold that view. However, the bodies under discussion are new. Their function is not yet prescribed clearly as an initial function, even by the Lord Chancellor. For me to add functions by definition to the Bill when I do not know what the Secretary of State or the Lord Chancellor already has in mind for the bodies would be premature. When the bodies are up and running, they will evolve and seek functions and powers for which there is not provision within the arrangements. It would be wrong to prejudge them.
 I am not an expert in such matters, but I understand the arguments that have been advanced forcibly by those who currently run the magistrates courts committees. They consider that, as of yet, such matters are insufficiently defined and that more exploration needs to take place to find out what the bodies could usefully do to improve the system. Were I giving powers to the Secretary of State, I would be worried, but the powers will go through the Secretary of State to the courts boards. I have more confidence in them. 
 I hope that I have made myself plain. I have two things in mind. First, the intention of amendment No. 115 is to lock together the courts boards and the local justice areas so that feedback ensures that what everyone wants happens. Secondly, we must allow for a growth in the functionality of the courts boards, so that they can undertake tasks to which I think they will aspire to, but which are not specified in the Bill. Taken together, that will build on what the Minister is proposing for the courts boards and what has been helpfully improved by the debates in another place.

Nick Hawkins: I can be brief in responding to the amendments tabled by the Liberal Democrats. I have more sympathy with amendment No. 115, which would add a specific scrutiny power for the boards to look at how the Lord Chancellor would be discharging his duties under clause 21, than I do with amendments Nos. 112, 113 and 114. I am always a little chary of plans to encourage a new bureaucratic body to do more, but I understand the spirit of what the hon. Member for Somerton and Frome is suggesting. I am sure that he is right that the courts boards will aspire to do more. Whether that is entirely a good thing or something that we should be encouraging in the Bill under his further three amendments I am not sure, but I shall listen with interest to what the Minister has to say about that.
 I can see a big advantage in amendment No. 115 because, as the hon. Gentleman says, it would be a helpful addition in the spirit of what was discussed in another place. It would add to clause 5(1)(a) a further scrutiny power for the boards in respect of the Lord Chancellor. I am content to support the amendment, 
 but I am agnostic about the other three. I shall wait to hear the Minister's response to the case made by the hon. Member for Somerton and Frome. 
 I want to remind the Committee that it is a surreal exercise to be discussing powers that will be given to and exercised by someone holding a post that the Government intend to abolish. That is true of almost every clause in the Bill. We do not want to continue such a debate throughout our proceedings, but it is pertinent to ask: can the Minister shed light on whether some of the powers might be exercised by a Secretary of State for Constitutional Affairs or a Secretary of State in another Department? 
 I would not be happy if many of the powers that have been traditionally associated with the Lord Chancellor were in 18 months' or three years' time suddenly transferred overnight in the Government's planning to the Home Secretary, for example. That is a worry. I have been talking to my hon. Friends about the matter and we were wondering whether some powers might be better exercised by senior members of the judiciary, rather than a Lord Chancellor who is not really a Lord Chancellor or may not be a Lord Chancellor in 18 months' or three years' time.

Boris Johnson: I want to get a flavour of the Government's thinking on the matter, because I do not understand what the role of the Lord Chancellor will be when the reforms are put through. If we get rid of the office of Lord Chancellor, will the appointments to the boards be classified as a judicial appointment or will they be something that falls to the Secretary of State for Constitutional Affairs? I should be interested to know the Minister's views.
 Who will be the head of the judiciary under the proposed reforms? Will it be the Lord Chief Justice or a senior Law Lord? Who is it envisaged will be the head of the judiciary? What will be his powers and responsibilities for the judiciary?

Paul Goodman: My hon. Friend assumes that the Government will abolish the post of Lord Chancellor, but since the Government will consult on the proposals that they have now issued, can we be certain that they will abolish the post? Will the Minister clear up that matter?
Mr. Johnson rose—

Eric Illsley: Order. Before the Minister responds to any of those points, I advise that they are slightly outside the clause under debate. Hon. Members must return to the subject under discussion.

Boris Johnson: Of course, I abide by your ruling, Mr. Illsley. However, as we are trying to legislate on the Lord Chancellor's appointments, it would be helpful to know in what sense the Lord Chancellor would be exercising a judicial function or an executive function. What will it be? We ought to know.

Christopher Leslie: It is interesting how at the end of the discussion on the narrow but important issues raised by the hon. Member for Somerton and Frome, we have broken out into a discussion that I expected
 would happen sooner or later about how clauses or amendments can include the phrase ''the Lord Chancellor'' when the Government intend to abolish that post. The post exists for the time being. We have not brought forward legislation as yet to change very many statutory references to the role of the Lord Chancellor. All that will come in due course.
 We envisage that these references in a number of Acts of Parliament will eventually transfer to the Secretary of State for Constitutional Affairs. Indeed, the hon. Member for Henley (Mr. Johnson) asked about the post of head of the judiciary. That is not particularly relevant to these amendments. As I understand it, there is no such role as head of the judiciary and president of the Supreme Court as currently understood. These are probably discussions to be held at another time.

Boris Johnson: The Lord Chancellor is currently head of the judiciary. Who would inherit those responsibilities under the proposed reforms?

Christopher Leslie: Much as I would love to expand on all these matters, there is no technical post of head of the judiciary in our constitution. I suspect that I would be ruled out of order if I continued in that vein. I am sure that we will have a further discussion about these issues in other forums.

Andrew Miller: My hon. Friend might have noticed that this morning the Annunciators in the other place—we must bear in mind the fact that the Opposition have a majority there—showed that the Lord Chairman, rather than the Lord Chancellor, was having a procession. This is all semantics. We are dealing with the person who does the job of the Lord Chancellor, as would be the case in many other pieces of legislation when named individuals pass on their responsibilities to others. We are dealing with the legislation in terms of the facts as they are now.

Christopher Leslie: While changes are under consideration, it would not be right for me to interpret how the Annuciators in the other place describe the person undertaking a particular procession. Nevertheless, we still have a Lord Chancellor.
 Amendments Nos. 112 and 115 together would require courts boards to scrutinise, review and make recommendations on the way in which clause 21 is exercised. Clause 21 is about the duty to consult magistrates. It was added to the Bill by Government amendment in another place. It guarantees that proper lines of communication will be established between magistrates and the courts administration about matters that affect them in the performance of their judicial duties. Although the Lord Chancellor's general duty includes the need to build effective lines of communication with all stakeholders, we added clause 21 because we recognised that, unlike the professional judiciary, magistrates do not have day-to-day contact with the courts, and statutory reassurance was therefore appropriate. 
 Clause 21 was developed in discussion with the Magistrates Association, and I am pleased that it welcomed the amendment. We intend to set out the key issues and the guiding principles for how this should work in practice in the agency's framework 
 document. The Court Service's existing framework document prescribes issues on which the professional judiciary must be consulted. That arrangement works well. The additional statutory backing given by Clause 21 to communication with magistrates gives them further reassurance. 
 That said, and given the extent and importance of clause 21, we feel that amendments Nos. 112 and 115 are not necessary. The courts boards will be expected to scrutinise, review and make recommendations on the way in which the Lord Chancellor is discharging his general duty. One of the necessary elements of that is to scrutinise the way in which consultations and communications are undertaken with all interested parties in the administration of the courts, including lay magistrates. The amendment therefore seems slightly superfluous; it gives courts boards a special remit to scrutinise the way in which the new agency communicates just with magistrates. 
 Although that is an important element of the work of the new administration, it does not merit such singling out of magistrates in particular. The function of the courts boards is to make recommendations that will make the courts' functions more effective in the interests of all court users in the local community in general, not just to ensure that the administration of the courts meets the needs of the magistracy. What about witnesses' interests, victims' interests and so forth? In many ways those are as important, so to include the proposals in the Bill would be slightly strange. 
 I would like to remind the Committee that the unified administration is about much more than the magistrates courts. Although I am repeating what I said before, the fact that the administration will also cover the work of the Crown court and the county court, as well as of the magistrates, the civil and family jurisdictions and the criminal jurisdictions, merits drumming home. The work of the civil and family jurisdictions is significant, in terms both of workload and of the issues at stake, and the new administration must support the needs of users of those courts equally. 
 Amendments Nos. 113 and 114 are slightly different and would provide that the Lord Chancellor may prescribe additional functions for the courts boards by statutory instruments subject to affirmative resolution. It would further be provided that the Lord Chancellor must prepare and issue guidance to the boards about how they should carry out any supplementary functions. 
 There was a great deal of debate in another place about the clause, which the Government added to the Bill through an amendment on Report. At that time, it provided that the guidance could be used to confer supplementary functions on the courts boards. Lord MacKay of Clashfern and Baroness Anelay in particular expressed concerns about the relevant subsection, which they thought gave the Lord Chancellor too much power to act through guidance, which reflects some of the instinctive comments that the hon. Member for Surrey Heath made earlier. 
 At the time, the Government withdrew the relevant subsection in response to those concerns. However, we are now in Committee in the Commons, with the amendment and the idea from the hon. Member for Somerton and Frome. We are prepared the consider the notion in the amendment a little further, although like my hon. Friend the Member for Wirral, West I have an instinctive scepticism about some of the issues and think that we must look with caution at whether to extend certain powers, and ask whether they are necessary. 
 The powers set out in the Bill at present are the right ones, and they resulted from a great deal of general debate and discussion about the formation of courts boards, not just the debates in another place. Although I invite the hon. Member for Somerton and Frome not to press amendments Nos. 113 and 114 now, I assure him that the question of what supplementary functions we might think about has come up before in consideration of the Bill. I assure the Committee that I shall think about the matter in much greater depth before Report.

David Heath: I thank the Minister for the way in which he responded to the amendment. I understand what he says about singling out the magistrates, but I instinctively feel that if the new system will leave anyone hard done by, it will be the magistrates courts rather than the High Court or the Supreme Court—they might have more friends in better places to protect their interests. That is why I am going out of my way where possible to protect the interests of the local magistrates courts.
 The Minister knows perfectly well the position of most magistrates on the question of whether the courts boards should have an increased range of powers. They have argued cogently for executive powers to be given to courts boards, but the Government are not prepared to accept that. Even within the scope of what is laid out, they feel that an enhanced role for courts boards would be to their advantage and to the advantage of the administration of justice. The Magistrates Association has commented to the same effect, as have individual magistrates courts committees. I have a letter from the Norfolk magistrates courts committee, which was passed on to me by my hon. Friend the Member for North Norfolk (Norman Lamb), and it explicitly states that the committee wants courts boards to have a stronger role. 
 Earlier, the Minister prayed in aid his consultation exercise, which included regional discussion groups. Again, it was clear during that exercise that there was much concern about the vague role of courts boards. There was a feeling that they needed to be better defined. Paragraph 13.1 of it states: 
''Some participants found it hard to understand what role the Boards would play. They thought it difficult to discuss roles and responsibilities until the scope of the Boards was more clearly defined.''
 Through discussions, a consensus was formed on what should fall under the scope of the boards. It was thought that there should be a focus on service delivery and performance, and on looking at outcomes. Boards should be involved in the 
 development and review of the strategic plan, and provide a link with the local community, including drawing local views to the attention of the chief officer. They should relate local need to available resources and consult local communities. They should be hands off and non-managerial, but also challenging and influencing. They should liaise with and provide support to the chief officer, and act as a buffer between national instruction and local issues. Finally, it was thought that boards should ensure that resources were allocated appropriately between civil, family and criminal work. 
 I cannot say that that view from the Minister's own discussion groups is reflected in the powers under clause 5. The Government need to think about this further. As the courts boards evolve, there will be a need to confer greater powers and scope to allow them to do their work. However, on the basis of what the Minister has said today and the fact that he clearly intends to continue thinking about this matter, I am content to withdraw my amendment. We do not have that long to go before the end of our consideration of the Bill, so we need greater clarity of the courts boards' role. On that basis, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Nick Hawkins: I beg to move amendment No. 10, in
clause 5, page 4, line 24, at end insert 
 'and may not come into force until it has been approved by an affirmative resolution passed by both Houses of Parliament'.

Eric Illsley: With this it will be convenient to discuss the following:
 Amendment No. 14, in 
clause 11, page 6, line 22, after 'Chancellor', insert 
 '(such directions to have been laid before both Houses of Parliament and approved by affirmative resolutions)'.
 Amendment No. 78, in 
clause 72, page 34, line 5, leave out from 'Rules' to third 'of' and insert 
 'shall not be made unless a draft of the instrument has been laid before and approved by resolution of both Houses'.
 Amendment No. 85, in 
clause 79, page 37, line 26, leave out from 'Rules' to third 'of' and insert 
 'shall not be made unless a draft of the instrument has been laid before and approved by a resolution of both Houses'.
 Amendment No. 86, in 
clause 80, page 37, line 35, at end insert— 
 '( ) No order which amends or repeals any enactment may be made under this section unless a draft of the statutory instrument has been laid before, and approved by a resolution of, each House of Parliament.'.
 Amendment No. 88, in 
clause 84, page 39, line 17, leave out from 'order' to 'House' in line 18 and insert 
 'shall not be made unless a draft of it has been laid before, and approved by a resolution of, each'.
 Amendment No. 92, in 
clause 85, page 39, line 40, leave out from 'Rules' to 'of' in line 41 and insert 
 'shall not be made unless a draft of the instrument has been laid before, and approved by, a resolution of both Houses'.
 Amendment No. 103, in 
clause 107, page 59, line 2, at end insert— 
 '( ) An order under subsection (3) shall not be made until a draft has been laid before both Houses of Parliament and approved by a resolution of each House.'.

Nick Hawkins: I can be brief in speaking to this group of amendments, because although it is large its contents are all to the same effect. We want to provide parliamentary scrutiny in a range of areas in the Bill. Amendment No. 10 relates to clause 5, and amendment No. 14 would add the provision for scrutiny of clause 11 by affirmative resolution. Amendment No. 78 would do the same thing for clause 72, amendment No. 85 for clause 79, amendment No. 86 for clause 80, amendment No. 88 for clause 84, amendment No. 92 for clause 85, and amendment No. 103 for clause 107.
 The Minister will be familiar with the concerns that we often express from the Opposition Benches about the need for greater parliamentary scrutiny. That applies to this kind of legislation, not least because of the concerns that I raised, which were further enlarged upon by my hon. Friends the Members for Henley and for Wycombe in the previous debate. We are talking about a completely new legislative arrangement. The Government are implementing a number of the suggestions that came out of Lord Justice Auld's report, and in the many different areas of the Bill—I shall not go through them all now—we need to be certain that parliamentary scrutiny exists so that the legislation can be kept under review. 
 It is not satisfactory for such a major new change to a system, which has been working well since 1949 for the most part, and for much longer in some cases, to simply go through on the nod, without proper parliamentary scrutiny. There will not be the opportunity for us to raise concerns on behalf of our constituents and lay magistrates throughout the country. 
 All the various parts of the Bill must contain the opportunity for any further changes made to order-making powers to come before Parliament. Our job here is to keep an eye on things. It will not be good enough if powers created by the Bill lead to future orders going through on the nod. 
 I hope that the Minister will understand that we are not trying to throw a spanner in the works. We simply want to ensure that we, the constituency MPs, whether we are on the Front or the Back Benches, may check how things will work in future and how orders that derive from the proposed legislation will affect the courts in our constituencies. 
 Although I do not expect the Minister to accept all the amendments today, I hope that he will understand the spirit that drives them and that he will consider whether to adopt some of them on Report. It would be helpful if the provision for parliamentary scrutiny that I feel is necessary were clearly written in the Bill.

David Heath: I concur.

Christopher Leslie: My comments run to several paragraphs—which will, I am afraid, be something of a contrast to the brief comment by the hon. Member for Somerton and Frome. However, I feel duty bound to respond to some of the amendments, which are grouped together because of their general effect, and to the question of whether parliamentary scrutiny should be undertaken by affirmative or negative resolution.
 Under amendment No. 10 the guidance for courts boards in clause 5 could not come into force without an affirmative resolution in Parliament. The Bill was improved as a result of the thorough debate in another place about the guidance to the courts boards. 
 The Bill originally provided only for guidance, but the Government tabled amendments that would allow for regulations, subject to the affirmative resolution procedure, if those were appropriate. The provisions on the constitution and procedure of courts boards are to be found in schedule 1. Nevertheless, there remains a need to provide guidance on matters that are not suitable for regulations. We have included provisions for guidance in the Bill to ensure that there is appropriate parliamentary scrutiny and that things must be laid before both Houses. In addition, we gave an assurance that the draft guidance would be available at the same time as the debate on regulations relating to the courts boards. That would ensure an appropriate level of parliamentary scrutiny for detailed arrangements, once they had been properly developed in partnership with stakeholders.

Stephen Hesford: Does my hon. Friend think that one of the worries of the hon. Member for Surrey Heath is whether the annual report to be made by the Lord Chancellor under clause 1(4), within 18 months of the courts boards coming into operation, would cover some of the general concerns about what progress was being made? That would answer the general concerns, rather than the specific concerns in each amendment, or other things as time goes by.

Christopher Leslie: My hon. Friend makes an important point. Although I have not been involved in drafting the Bill—I am only 10 or 11 days into my role with this portfolio—I am struck by the fact that it bends over backwards to ensure that there is full accountability and parliamentary scrutiny in various ways, including the annual report provisions. The drafting has been generous in terms of striking the right balance between the flexibility of the Executive to conduct business with efficiency and due speed, and the need for proper scrutiny, discussions and consideration of the views expressed in Parliament. Many of those points are the same as those that my hon. Friend made.

David Kidney: Bearing in mind the pressure that the House is under about when to use affirmative resolutions, is it not particularly inappropriate for the Opposition to ask for them here, given that what the guidance relates to is on the face of the Bill? Did we not just hear in the last debate that a wider power of giving guidance was narrowed because of the Opposition's objections?

Christopher Leslie: I am sorry to blow the whistle on this
 parliamentary tactic, but in my long years of experience in Parliament I have realised that Oppositions feel it their duty to table amendments to press for more affirmative resolutions and for powers to be introduced only by positive order. Governments have traditionally tended to resist that, because of the need for the expeditious execution of business. I feel that in this case my hon. Friend is right to suggest that to subject guidance, which is not in legislation, to such close parliamentary scrutiny is a little over the top. Guidance should not be subject to affirmative approval from Parliament in that way, not least because it needs to be a living document. It needs to be something that can be amended in the light of experience and changed priorities. The affirmative resolution procedure makes it difficult to make changes as circumstances evolve.
 Amendment No. 14 seeks to open up to parliamentary debate and approval the competence framework established for lay justices. In our view it is entirely inappropriate for Parliament to involve itself in debating matters affecting the competences of independent judicial office holders, particularly when effective mechanisms are already in place to ensure that the competence framework is appropriate, robust and workable. 
 Moreover, the framework providing for the Lord Chancellor's removal of a magistrate if he is not playing a proper part in the exercise of his duties has been developed over time through consultation with the relevant organisations. They include the Magistrates Association, the Justices' Clerks Society, the Association of Justices' Chief Executives, the Central Council of Magistrates' Courts Committees and others. It is overseen by the Judicial Studies Board's magisterial committee and approved by the Secretary of State in his capacity as Lord Chancellor. 
 Amendments Nos. 78, 85 and 92 relate to rule making, which we will undoubtedly discuss later as we proceed through the Bill. They would subject all rules of court, whether allowed or altered by the Lord Chancellor, to the affirmative resolution procedure. If they were accepted, unnecessary delay would be introduced into the process of making rules of court, be it for the criminal, family or civil jurisdiction—with consequences for the provision of justice. 
 Historically, rules of courts made by specialist committees have been subject to the negative rather than the affirmative resolution procedure. That has worked perfectly well. To change it would unnecessarily increase the amount of work before both Houses of Parliament. One of the most overwhelming arguments is that the House of Lords Delegated Powers and Regulatory Reform Committee has approved the negative resolution procedure as the appropriate level of Parliamentary scrutiny for the making of rules of court. 
 I am aware that amendments similar to these were tabled in the other place as a result of concerns about the Lord Chancellor's power to alter rules. Those amendments were withdrawn when the Government tabled amendments subjecting altered rules to the affirmative resolution procedure. This is a higher level 
 of parliamentary scrutiny than for those rules that are simply allowed by the Lord Chancellor. I hope that these amendments, too, will be withdrawn now that I have made it clear that altered rules will be dealt with by the affirmative process. 
 Finally, I should like to add a couple of comments about amendments Nos. 86 and 103. Amendment No. 86 proposes that all secondary legislation introduced under Clause 80, which is about the power to amend legislation in connection with family procedure rules, should be subject to affirmative resolution. The amendment is unnecessary. 
 The Select Committee on Delegated Powers and Regulatory Reform has already commented on that. 
 Amendment No. 103 seeks to require that no orders may be made under clause 107(3) unless the order has been approved by affirmative resolution. As I said in response to amendment No. 86, there is a good reason for resisting the amendment because that is already provided for in clause 106(3). There will be affirmative statutory instruments in those cases. 
 Although the Bill as originally drafted provided for negative resolution of orders made under clause 107, the Government amended the Bill in the other place to provide for affirmative resolutions in the light of views expressed by the Committee on Delegated Powers and Regulatory Reform. We believe that the Bill strikes the appropriate balance between flexibility and parliamentary scrutiny. It is generally acknowledged that the experts on such matters are the members of the Select Committee on Delegated Powers and Regulatory Reform, and we have already amended the Bill in the light of some their views. We now believe that the delegated powers strike the appropriate balance. I therefore hope that the amendments will not be pressed.

Nick Hawkins: I shall not pursue the matter further today. As the Minister has said, Governments traditionally resist attempts by the Opposition for more use of the affirmative resolution procedure. That is an ongoing battle, and we will no doubt return to it on future occasions. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 5 ordered to stand part of the Bill.

Clause 6 - Abolition of magistrates'

Question proposed, That the clause stand part of the Bill.

David Heath: It has been suggested that the transition from the magistrates courts committees to the new structure might benefit from using some of the experience of those who at present sit on magistrates courts committees in an effective way. History supports that view, but I say that with some trepidation, because I do not necessarily want the same bodies to be transferred from one area of responsibility to another if they do not merit it.
 I recall that when the Police Act 1996 was passed, I was the chairman of the Avon and Somerset police authority. I then found myself elected as chairman of the newly constructed police authority for Avon and Somerset, which was a completely different beast. The number of members was cut from 35 to 17; it had new independent members and a vastly different structure. It was of enormous benefit that a few people appeared on both sides of the transition, because they had the experience of what had happened previously, knew the tricks of the trade, had a relationship with the chief constable and were able to contribute effectively. 
 I suspect that the same may be true under the Bill, although we are talking about moving from an executive to a non-executive function. The courts boards may well benefit from the experience of those who have served on magistrates courts committees. I put it to the Minister that that is something to be considered when appointing the courts boards, not to avoid having new blood—I approve of new blood being brought into such organisations—but because some continuity is occasionally helpful.

Nick Hawkins: I share the hon. Gentleman's views. Whenever a new system is created, some expertise from the past is assuredly helpful. I regret that the Government's response to Sir Robin Auld's report on magistrates courts committees was to decide that they had to abolish the old and bring in something completely new. As a matter of general principle I have always believed in the maxim, ''If it ain't broke, don't fix it.'' I am not convinced that something as quintessentially English as magistrates courts committees need wholesale reform.
 Much of what was in the Auld report said that there were some differences in the ways in which magistrates courts committees did things because they were left to devise their own procedures and forms of implementing legislation and Government policy. 
 As we have already said, and as the hon. Gentleman pointed out this morning, the reason why that tended to work was that there are vast differences between different parts of the UK. The die has long since been cast, so I shall not challenge the entire basis of the Bill at this late stage—but I did not want the clause dealing with the abolition of those bodies to pass without at least placing on the record our recognition of the huge amount of work that has been done successfully in the past by members of the magistrates courts committees. 
 I am not sure that we will find that by creating a new kind of bureaucratic monster, the Government are addressing some of the problems that Sir Robin Auld referred to in respect of the shortage of funding, accounting arrangements and gaps in coverage that were found during inspections. I have a feeling that the same sort of failings will apply to the new system. Just because we want administrative consistency, we should not tear up something that was quintessentially English and replace it with a new bureaucracy—but that is my personal expression of regret. I want to place on record the view of the Conservative party that we must pay tribute to the hard work done by lay magistrates who give up their time to be magistrates and to sit on magistrates courts committees. It is 
 important that that work should be recognised publicly.

Christopher Leslie: As the Committee is aware, given that the Lord Chancellor is taking responsibility for the administration of all courts in England and Wales other than the Judicial Committee of the House of Lords for the time being, the clause abolishes the current arrangements for the administration of magistrates courts, known as magistrates courts committees. Those and the Court Service will be replaced by an executive agency of the Lord Chancellor's Department. The clause abolishes magistrates courts committees, of which the Greater London Magistrates Court Authority is one—that is mentioned in the Bill. That means that England and Wales will no longer need to be divided geographically into different MCC areas.
 I am sorry that the hon. Member for Surrey Heath needed to voice his dislike of the abolition of the MCCs. As a result of the Auld review, the Government came to the conclusion—even in my short time as a Minister with responsibility for the Court Service, it has occurred to me, while thinking through potential improvements to the system—that to have such a rigid and fragmented service with barriers between each MCC area inhibits change. Labour Members may call that modernisation, but I would not want to put off Conservative Members by using that term. 
 At present, a justices' chief executive acts as the full-time chief officer employed by each magistrates courts committee. As the committees will be abolished, there will no longer be a function for justices' chief executives, so that post will be abolished as well. On behalf of the Government, I pay tribute to all who have undertaken the role of justices' chief executive. Over the years, they have provided immense service to the administration of justice. They will continue to work in the justice system, although the title and role of the post will change and evolve. 
 As a result of the clause, many provisions of the Justices of the Peace Act 1997 will no longer be operative. In order to keep the statute book in good order, we have re-enacted the remaining operative provisions, with the necessary modifications, where appropriate. We have done so to ensure that all relevant provisions can be easily located in one place. 
 The hon. Member for Somerton and Frome reasonably raised the matter of using experience gained from magistrates courts committees. That is a fair point. The courts boards will need a great deal of local expertise in order to get up and running. We have got to keep the show on the road and ensure continuity of business. Although the task will change, there will still be a local role. The Government need to consider thoroughly at a national level how to make sure that we keep some home-grown expertise and bring it into the new administration as it evolves. 
 I hope that the clause is self-explanatory and stands part of the Bill. 
 Question put and agreed to. 
 Clause 6 ordered to stand part of the Bill.

Schedule 2 - Abolition of magistrates'

David Heath: I beg to move amendment No. 116, in
schedule 2, page 61, line 25, leave out 'or in connection with'.

Eric Illsley: With this it will be convenient to discuss amendment No. 117, in
schedule 2, page 61, leave out lines 36 and 37.

David Heath: These are probing amendments intended to clarify the effect of the schedule. I shall set out my worries, after which the Minister must tell me that they are misplaced. Several public or private authorities own property, which is used in connection with magistrates courts, but which forms no part of the magistrates courts committees estate. Under the Bill, it could, in effect, be requisitioned by the Department for Constitutional Affairs to promote its own interests. I am sure that that would not happen, but can the Minister explain the meaning of ''or in connection with''? I understand the meaning of ''for the purposes of'' and ''are otherwise attributable to''.
 I shall cite an example. We have a magistrates court in Frome, and I hope that we shall still have one in a few months' time. We have a police station. The police station is next to the magistrates court. The police station and its curtilage are owned by the police authority and the magistrates court is owned by the magistrates court committee. One building is clearly ''in connection with'' the other. They may have other functions, but the positioning is not other than deliberate. 
 I am slightly worried that the present wording suggests that, when the transfers have taken place, the courts agency could quite properly say—although I do not say that it will—''That building is in connection with the magistrates court, so it now passes into our ownership by statute of Parliament.'' I find it hard to find any reason in the text to say that that is not the case. Will the Minister explain the meaning of ''or in connection with''? What circumstances is the provision intended to deal with? 
 Sub-paragraph (2) refers to ''persons'' who own property that will be transferred to the new agency. It lists those who we would expect to find in such instances and then includes a catch-all provision, which states: 
''any other body which acts under any enactment or instrument for public purposes and not for its own profit.''
 Thus, any agency of the state or local government that happens to own property that the Lord Chancellor has his eye on could be required to hand it over by virtue of the provisions for the purposes of adding to the Lord Chancellor's estate. I am sure that that is not the intention, although past Lord Chancellors would no doubt have found that an attractive element in British law. If the provision were not for that purpose, under what circumstances could a body unconnected with the magistrates courts committee and unconnected with an agency of the justice system be required to transfer ownership of property or assets to the Lord 
 Chancellor because it has some connection with the magistrates or other courts? That seems odd, but there must be a reason for it. Will the Minister say what it is?

Nick Hawkins: I concur.

Christopher Leslie: This is déjà vu all over again.
 I take it that the amendment is a probing amendment that is intended to ensure that the Bill is not too widely drawn. The phrase ''in connection with'' is necessary to ensure that all buildings needed for the smooth running of the magistrates courts are transferred under the Bill. It is important that we do not leave anything out. The phrase ''in connection with'' is intended to cover functions related to magistrates courts other than specific court functions. 
 Two main situations are envisaged, although there may be others. There are apparently 23 instances of MCC office accommodation separate from courthouses fulfilling a function that is subsidiary to but supportive of the judicial function of the courthouses themselves. I am told that there is at least one instance of an MCC management training centre that would be covered by the contentious but important phrase.

David Heath: I want to stop the Minister before he goes any further. Surely those functions are for the purposes of magistrates courts or otherwise attributable to magistrates courts, and do not have to be separately defined.

Christopher Leslie: That is not the interpretation of parliamentary counsel in drafting the Bill. We feel that we need the latitude given by the phrase in question in order to encompass the relevant situations. I must put my hand on my heart and say that I have not necessarily visited all 24 examples that I have alluded to, but I shall consider the matter in closer detail.

Norman Lamb: I thank the Minister. I understand from what he said that the parliamentary draftsmen feel it necessary to include those words to ensure that the provisions catch the 24 examples that he gave. However, is there not a danger that the provisions go much further than that and potentially bring within their remit lots of other circumstances, which may not be intended?

Christopher Leslie: I have not seen sufficient reason to believe that that would be the case. We have an obligation more in the other direction: to ensure that we do not have disputes over the future ownership of buildings whose functions are closely connected to but distinct from the primary function—I stress the word ''primary''—of the magistrates courts.
 Amendment No. 117 would leave out paragraph 1(2)(g), which is intended to cover two situations. There may be circumstances under which a public body other than those mentioned in sub-paragraph (2)(a) to (f) has a freehold or leasehold interest in property used for the purposes of, in connection with or otherwise attributable to magistrates courts. Under such circumstances, it is intended that the interest should pass to the 
 Department for Constitutional Affairs—the DCA. The national probation service was envisioned in constructing the schedule. The service has a significant presence in magistrates courts and in at least one known instance owns the court building. There may be similar situations involving other public bodies, but those have not yet been discovered, and I am certainly not aware of them, so we must err on the side of caution. 
 In many cases, areas of magistrates courts are occupied by other parties with a connection to the court function, such as the Crown Prosecution Service. Those arrangements are generally on an informal basis for the mutual benefit of the parties. However, it means that in several situations a significant proportion of space available in a courthouse or another building, the function of which is connected with the magistrates courts, is occupied by bodies other than the MCCs themselves. While it is intended that in general those occupancies should remain in place, for the avoidance of complications, the interests of those subsidiary bodies should nominally transfer to the DCA, which will re-grant them back to those bodies. I hope that with that level of assurance and with those particular examples that I have been fascinated to learn about, the hon. Member for Somerton and Frome will withdraw the amendment.

David Heath: I do not know who would be prouder of the Minister's performance: Cardinal Wolsey or Thomas Cromwell. One of the two would have been pleased to have that power. I accept the Minister's explanation of why he needs the power for the specific instances. It is drawn too widely but I will have to trust to the good sense and lack of avarice of the new Department to ensure that it does not acquire, by virtue of this statute, property to which it is not entitled.

Nick Hawkins: A thought occurs to me. Given that the hon. Gentleman has made his comparison with two famous previous Lord Chancellors and that the most recent Lord Chancellor prior to the reshuffle compared himself to Cardinal Wolsey on a famous occasion, is the hon. Gentleman saying that Lord Falconer is his idea of Thomas Cromwell?

David Heath: Such comparisons would be odious. I notice that there is no specific reference to wallpaper in the clause. We must assume that the previous Lord Chancellor's writ no longer runs.
 The Minister has satisfied me about the use of magistrates courts' property by other bodies. However, I am still concerned about what is meant precisely by the phrase ''in connection with'', which is not within the other two definitions. It looks like one of those belt-and-braces jobs in which parliamentary counsel sometimes indulge just to make absolutely sure. It has probably always been put like that when people are taking over just in case someone comes up with a bright reason for resisting the transfer, but it seems otiose. Having said that, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That this schedule be the second schedule to the Bill.

Andrew Miller: I want to ask my hon. Friend a couple of questions because there are some issues that are quite fundamental to the people who transfer. Staff transfers are covered in detail in part 2, which is very positive. My hon. Friend will be aware that the Secretary of State for Work and Pensions made an important statement recently about TUPE. It was a progressive statement that was welcomed by those of us who negotiated transfers of undertakings on behalf of employees over many years.
 I suspect that it is an academic issue in the context of people like members of the Association of Magisterial Officers because I would presume that their pension transfers would be treated as the kind of club transfers that apply within the public sector. Preferential arrangements are built in for those transfers. As a non-lawyer and not having visited too many magistrates courts, or indeed any other court, I presume that there are other employees who are not engaged on the kind of terms and conditions that are afforded to the Association of Magisterial Officers. I therefore seek an assurance that relates to the timing of the enactment of both this Bill and the statement on pensions. Can we ensure that when these public servants make that transfer the spirit of the statement made only last week is incorporated in whatever we finally enact? 
 Paragraphs 10, 11 and 12 refer to the Transfer of Undertakings (Protection of Employment) Regulations 1981, and statutory instrument 1981/1794. TUPE specifically excludes pension provision. I appreciate that this is a technical matter, which may require liaison with colleagues in the Department of Work and Pensions, but I seek assurance that the timing of the enactment of the schedule will not disadvantage people. 
 Secondly, I do not expect an answer today, but for the sake of those of us who are not lawyers, I draw my hon. Friend's attention to paragraph 14— 
''Restrictions on employment of aliens not to apply to transferred employees''—
 which states: 
''Nothing in . . . section 3 of the Act of Settlement (1700 c.2)''.
 It is good to hear that legislation enacted by one of my hon. Friend's predecessors has survived for so long: all power to them and the civil service for getting things right. 
 Similarly, paragraph 14(b) states: 
''section 6 of the Aliens Restriction (Amendment) Act 1919''.
 That is a tad before anyone in the Room was born. It would be helpful to have some explanation of what that means in plain English, and to know whether there are possible contradictions. I presume that rights might be afforded to Commonwealth citizens who would be excluded from legislation that existed before the creation of the Commonwealth. I make only a general inquiry because I am intrigued by the fact that legislation has such longevity. It is a credit to the British parliamentary institution. The hon. Member for Somerton and Frome shakes his head, but the 
 Liberals were in power for some of that time, so we might have to blame them for it. I do not know.

David Heath: I honestly do not believe that the hon. Gentleman can blame us for the Administration of 1700, as it would not be considered to be Liberal Democrat in tone.

Andrew Miller: Indeed. I was thinking more of the middle of the 20th century.
 There is a serious point to be made: we need to make legislation understandable to lay people. It would be very helpful if the Minister could put these points into context.

David Heath: I am grateful that the hon. Gentleman has raised some important points about pensions, because the announcement made by the Secretary of State for Work and Pensions is relevant to the debate. I am sure that he will be aware that the relevant trade union—the Association of Magisterial Officers—is now generally satisfied about the TUPE arrangements and the staffing issues that were a matter of contention at an earlier stage in our deliberations on the Bill. I am grateful to Ministers for listening to the points that it had to make. Its key point is whether the level of funding will be sufficient after transfer to achieve the objectives that the Bill sets itself, while also representing a fair deal for the staff who work in these institutions. That is a genuine and legitimate concern, which the Minister should be able to address.
 On the Act of Settlement 1700, I have little to add other than to say that I suspect that, if anything, it will be disobliging to Scots, rather than anyone else, given that period in English history.

Christopher Leslie: Schedule 2 makes provision for the Lord Chancellor to facilitate the transfer of magistrates courts estate and real property rights to the Secretary of State, to transfer other property rights and liabilities to himself, and to transfer staff to his own employment on the abolition of the MCCs under clause 6.
 The aim of the property provisions in the schedule is to integrate the Court Service and magistrates courts estates under the auspices of the new agency. The schedule provides that the Lord Chancellor may create a property transfer scheme to transfer any property, rights and liabilities of the MCCs, local authorities and others, in connection with the magistrates courts, to the Lord Chancellor or another Minister immediately before the appointed day. The appointed day is the day immediately before the MCCs and the Greater London Magistrates Courts Authority are abolished. The details of the transfers will be contained in a property transfer scheme. 
 The schedule overrides any provisions of whatever nature that might prevent, penalise or restrict the transfer. It provides for just compensation to be paid to third parties whose rights are affected by other provisions in the schedule and provides that a certificate issued by the Lord Chancellor will be conclusive evidence that property has, or has not, been transferred. 
 The schedule also sets out a number of important provisions that will allow eligible staff currently 
 employed by the MCCs to transfer to the new agency. That was the subject of the comments made by my hon. Friend the Member for Ellesmere Port and Neston (Mr. Miller). The definition of an eligible employee is set out in paragraph 9(4) and includes local authority staff who spend a substantial amount of their time on work connected with the MCCs or magistrates courts. 
 In relation to the matter my hon. Friend raised, the schedule makes it clear that the Transfer of Undertakings (Protection of Employment) Regulations 1981, which are known as TUPE, will apply in order to ensure that staff subject to the scheme will receive terms and conditions of employment under the new agency which are no less favourable that those that they had under their previous employers. Although TUPE excludes pensions, there is no intention to disadvantage staff transferred to the principal civil service pension scheme. Transfers will have to be worked out so that terms are broadly equivalent, according to actuarial calculations. I hope that that is sufficient to placate my hon. Friend. 
 My hon. Friend also asked about restrictions on the employment of aliens not applying to transferred employees. Some hon. Members will have followed the civil service reform programme over several years. Having been a Minister at the Cabinet Office, I can say that the Government have been concerned for some time about civil service rules including a certain number of nationality conditions in relation to employment in the civil service. The schedule provides that any MCC or local authority staff who are regarded as aliens under the current definition in civil service employment legislation will still be eligible to transfer into the employment of the Lord Chancellor. In this context, an alien can be defined as a person who is precluded from employment in the civil service by existing legislation. Examples are 
 nationals of non-European Community or non-European Free Trade Association states. I hope that that answers my hon. Friend's point. 
 The hon. Member for Somerton and Frome was particularly concerned about funding. That has obviously been raised in discussions with the relevant trade unions and employee associations as matters have progressed. I am assured that the plans that are in place are robust and capable of dealing with all the necessary costs, but I will obviously ensure that the management of the process is closely monitored to ensure that we are not underfunding transfer arrangements in any way.

Norman Lamb: May I ask the Minister another question about TUPE, to which he has just referred? The TUPE regulations do not preclude the transferee—the receiving employer—making staff redundant if the redundancy is genuine. Is it anticipated that staff could be made redundant, despite the provisions of TUPE applying, or will all existing staff transfer and retain their employment?

Christopher Leslie: I dealt with some of these matters earlier in references to similar discussions on the general duties under clause 1 and I will not repeat what I said. We want the transfers to go through without the controversies to which the hon. Gentleman alluded. However, we will keep matters under review as they develop. We cannot preserve the current arrangements in aspic for all time, but we intend to honour our normal TUPE obligations.
 Question put and agreed to. 
 Schedule 2 agreed to. 
 Further consideration adjourned.—[Ms Bridget Prentice.] 
 Adjourned accordingly at twenty-nine minutes to Five o'clock till Tuesday 1 July at half-past Nine o'clock.